Ballestreros report on the use of mercenaries as a means of violating human rights of 1994Paper

Report on the question of the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, submitted by the Special Rapporteur of the Commission on Human Rights

United Nations
General Assembly
A/49/362
6 September 1994

Report prepared by Special Rapporteur on the question of the use of mercenaries

The General Assembly, in its resolution 48/92 of 20 December 1993, inter alia, condemned the continued recruitment, financing, training, assembly, transit and use of mercenaries, as well as other forms of support to mercenaries, for the purpose of destabilizing and overthrowing Governments: the Assembly reaffirmed that the use of mercenaries and their recruitment, financing and training are offences of grave concern to all States and violate the purposes and principles enshrined in the Charter of the United Nations.

VI. PRESENCE OF MERCENARIES IN CONFLICTS OCCURRING IN STATES LOCATED IN THE TERRITORY OF THE FORMER UNION OF SOVIET SOCIALIST REPUBLICS (USSR)

A. Armenia-Azerbaijan (Nagorny Karabakh)
B. Other States

VII. CURRENT STATUS OF THE INTERNATIONAL CONVENTION AGAINST THE RECRUITMENT, USE, FINANCING AND TRAINING OF MERCENARIES

VIII. CONCLUSIONS

IX. RECOMMENDATIONS

Abstract

VIII. CONCLUSIONS

80. The United Nations considers mercenary activities unlawful and criminal, as mercenaries have been used to commit acts contrary to international law, thereby creating situations that impede self-determination and endanger the sovereignty of States, the constitutional stability of Governments and the human rights of the peoples affected by this criminal activity. In this context, international instruments have been adopted which condemn and punish the recruitment, training, financing and use of mercenaries. At the same time, according to information gathered for this report, many States have included mercenarism as a punishable offence in their national legislation.

81. The condemnation of mercenarism is a universally accepted fact, even in those States which have not yet specifically categorized it as a crime. At this point, the debate is focused on the scope and content of this punishable act, but not on its criminal nature. Moreover, without prejudice to the further development of international legal instruments and of the provisions of national law, member States should strengthen their capacity to formulate policies on the prevention, prosecution and punishment of mercenary activities. The prevention aspect is fundamental and must include such matters as, for example, use of the open labour market in recruiting persons for unspecified activities. This topic is extremely sensitive and should be examined by each country in accordance with the nature of its economic system as protected by the Constitution. In any case, it cannot be alleged that there is any contradiction between constitutional and international norms. If mercenary activities are considered a crime, it cannot be argued that it is permissible to use the open market to recruit mercenaries.

82. In the same way, States have the capacity to prevent their territory from being used for the training, massing or transit of mercenaries. States can also take very useful action by adopting measures to ensure that their financial and economic systems cannot be used to facilitate operations linked to such illicit activities.

83. From the information gathered, classified and analysed for this report, it is clear that mercenary activity is not limited to the agent who actually commits the criminal act. He is merely the one who executes a wrongful act. In reality, before a mercenary is recruited and before he commits a wrongful act, there has to be an operation which has been conceived, planned, organized, financed and supervised by third parties; the latter may be private groups, political opposition organizations, groups which advocate national, ethnic or religious intolerance, clandestine organizations, paramilitary groups or Governments which, through covert operations, decide on illegal action against a State or against the life, liberty, physical integrity and safety of persons, and involve mercenaries in that action. Responsibility for a mercenary act extends to the agent who executes the criminal act in its final phase, but also to all those who, individually or collectively, participated in the wrongful act of using mercenaries for the commission of a crime. This, therefore, leads to the conclusion that vigilance, control and express prohibition provided for by Member States in their domestic legislation are very important in order to prevent organizations which generate mercenary activities from operating in their territory and, where necessary, to counter any intelligence machinery that, through covert operations, permits the involvement of government agents who recruit mercenaries or do so through third organizations, by prescribing harsh punishment for such unlawful contractual relationships.

84. In addition to the general observations made above, mercenaries are most frequently recruited to commit acts of sabotage against a third country, to carry out selective assassinations of eminent persons, and to participate in armed conflicts. It therefore follows that a mercenary is a criminal who, without prejudice to the punishment applicable to those who recruited and paid him, must be severely punished, in keeping with the categorization of the common crime he has committed, where national law does not envisage the crime of mercenarism as such. In any case, the person's mercenary role should be considered as an aggravating factor.

85. Based on the information gathered on mercenaries participating in the most recent domestic or international armed conflicts, it is necessary to consider the possibility that the increase in the supply of mercenaries might be influenced by the existence of military personnel whose personal situation has deteriorated as a result of the reduction in strength or dissolution of the regular armed forces to which they belonged, and who have consequently joined the ranks of the unpaid.

86. There are cases in which legal formulas, or more specifically, standard legal procedures are resorted to in order to conceal a mercenary. He may thus appear to have the legal status of a national of the country where he becomes involved in an armed conflict, or where he will fulfil his criminal assignment, thereby avoiding categorization as a mercenary. Although this approach legally masks an individual's real mercenary role, the origin of the contractual relationship, the payment received, the type of services agreed on, the simultaneous use of other nationalities and passports, etc., must be seen as indications of the true nationality of persons where there are strong grounds for suspecting that they are mercenaries.

87. The sum total of these acts defines the scope and magnitude of mercenary activity as one of the crimes that most seriously harm the self-determination of peoples, constitutional stability, peace and human rights. This therefore highlights the importance of the General Assembly's agreement, as reflected in resolution 48/92 adopted on 20 December 1993 (para. 9), concerning the convening of a group of experts, specialists and interested persons who could contribute to the further development of the concepts, categories, studies and proposed solutions contained in the reports which the Special Rapporteur has submitted to the Commission on Human Rights and the General Assembly itself. The fact that, due to budget restrictions, the Centre for Human Rights did not programme this activity for 1994 does not mean that it cannot be maintained, since it can indeed help to contribute to the development and production of practical recommendations for the proposals contained in the reports of the Special Rapporteur.

88. The information gathered confirms that during the past few years, several African States have been subjected to the activities of mercenaries. In this connection, it should be recalled that the concept of a mercenary, as construed today, took as its point of departure the presence of professionals of war, who were active in bloody armed conflicts in various regions of Africa in order to prevent the exercise of the right to self-determination, independence and the formation of sovereign African States, and to form territorial enclaves subordinate to former colonial Powers or to install Governments subordinate to them or to colonialist ventures. In so far as some of these conflicts have been settled, mercenary activities can be said to have subsided, but they have not disappeared completely. Angola, Benin, Botswana, the Comoros, Lesotho, Liberia, Mozambique, Namibia, Zaire, Zambia and Zimbabwe, inter alia, are countries with recent experience of mercenary activity, and in certain cases, outside the region of southern Africa, mercenary attacks have occurred as a result of the policy of apartheid which originated in South Africa but has ramifications and has sparked criminal activities all over Africa and even outside it.

89. During the first half of 1994, the situation in Angola continued to deteriorate, with the failure of the attempts to continue the process begun by the peace agreements signed on 31 May 1991. The information obtained indicates that the impact of this war on the Angolan people is even worse than it had been up until 1991. Their living conditions have deteriorated to such an extent that starvation is widespread, the number of deaths is estimated at over 1,000 a day and at approximately 200,000 since the resumption of the war. United Nations efforts to reduce the suffering of the Angolan people and to end the conflict have not been successful thus far. Hence the importance of Security Council resolution 864 (1993), unanimously adopted on 15 September 1993 pursuant to Chapter VII of the Charter of the United Nations, declaring an embargo on the supply of arms, related matÚriel and petroleum to UNITA forces. None the less, it should be noted that in early December 1993 UNITA announced its willingness to negotiate a truce and reopen a dialogue with the Government. Unfortunately, the talks failed and the military conflict once again intensified. In June and July 1994 both parties to the conflict launched offensives, securing the areas under their control and attacking those controlled by the other side. The war threatens to continue indefinitely, postponing the prospect of a negotiated peace.

90. In relation to the mercenary activities generated in South Africa within the context of the policy of apartheid, whose backdrop has been not only South Africa, but also other countries of the region, and even countries outside Africa, the report demonstrates that such mercenary activities have substantially abated with the progressive dismantling of apartheid. The holding of the first multiracial and democratic elections, in April this year, and resulting election of Nelson Mandela as President, signals the beginning of a process of consolidation of democracy and full respect for human rights in South Africa. As this process continues, it is to be hoped that the resistance of certain extremist groups within the white minority, which have even called for the hiring of mercenaries to assist them with military organization and training, will be kept under control, and that it will be possible to investigate and punish the actions of those civil servants, State agents, civil or military officials, mercenaries and paramilitary personnel who have committed crimes against the black population in South Africa and neighbouring countries.

91. The report reviews and enlarges on the concerns of the Special Rapporteur on the situation of human rights in Rwanda, already referred to in his reports of 1992 and 1993. In the context of the serious deterioration of the situation in that country, which has led to the deaths of more than 500,000 people and suffering for the entire population, the report places particular emphasis on the need for a thorough investigation of the criminal attack on the aircraft carrying the Presidents of Rwanda and Burundi, in which both were killed. Although it would be premature to draw any conclusion, it is not possible to ignore the accusations, comments and rumours that have been echoed in the international press regarding the possibility that two foreign mercenaries may have been the principal figures responsible for the attack, which unleashed the genocidal massacres.

92. Unlike previous reports, this text contains no additional information on the armed conflicts in the territory of the former Yugoslavia. Instead, it emphasizes the correspondence and allegations received from the Federal Republic of Yugoslavia (Serbia and Montenegro) and from the Republic of Croatia, on the presence of mercenaries. The Special Rapporteur plans to visit both countries in the second half of September this year, and will give a preliminary account of the results of his mission when he introduces the report in the Third Committee of the General Assembly. This does not preclude a more detailed analysis in subsequent written reports.

93. Following the breakup of the former Union of Soviet Socialist Republics, the republics which previously formed part of that State have become sovereign and independent States, the majority of them making up the Commonwealth of Independent States (CIS). Disputes of various sorts have arisen in a number of those countries, some relating to border issues, others to internal relations between territories and republics and their autonomy with respect to the new State. But the disputes which have degenerated into armed conflict are mainly those which involve some ethnic element and strong nationalist or religious feeling, acting as catalysts in the choice between greater autonomy, territorial redistribution involving a move from one State to another or a change in the nature of the political regime. In every case where the deadlock has turned into armed conflict, there has been participation by mercenaries, according to the information analysed by the Special Rapporteur. The report refers especially to the Nagorny Karabakh conflict, in which the main adversaries are the armed forces of Azerbaijan and the ethnic Armenians of Nagorny Karabakh, fighting for control of the enclave. It is well known that there have been numerous accusations concerning the participation of mercenaries in this conflict. A detailed account of their activities in association with the ethnic Armenian forces is contained in a recent communication from the Government of Azerbaijan. Peace efforts have so far been unsuccessful. On the other hand, solutions have been found for the conflicts in Georgia and the Republic of Moldova, and a peace process has begun in Tajikistan; in all of these conflicts, there had been numerous accusations concerning the presence of mercenaries. This shows that political negotiation can lead to realistic agreements, guaranteeing peace and good relations among all the States making up the Commonwealth of Independent States.

94. With regard to the current status of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, the Special Rapporteur notes that to date only seven States have completed the process for becoming parties to the Convention (Barbados, Cyprus, Maldives, Seychelles, Suriname, Togo and Ukraine), and that a further 13 States have signed it. This situation has prompted the conclusion that there is a delay in the process by which Member States express consent to be bound by the Convention through ratification or accession, for until 22 States have ratified or acceded to it, the Convention cannot enter into force.